All four of the Barbara McDowell Foundation's 2021 grantees were contacted in January in accordance with the Foundation’s requirements and reported with respect to the progress of their case through the first quarter of their grant cycle. Their reports can be read below.
In addition to reporting on their progress, each grantee also submitted first quarter time sheets for their case work, and all were deemed to be meeting the requirements of their grants. The average dollar value in attorney time spent by each grantee on their respective case exceeded $49,000.
On September 13, 2019, Asian Americans Advancing Justice-AAJC (“Advancing Justice-AAJC”) and MALDEF filed a lawsuit challenging the Trump administration’s executive order to collect and provide block-level citizenship voting age population (CVAP) data to the states for purposes of state redistricting as an unconstitutional and racially discriminatory scheme intended to deprive Latinos, Asians, and non-citizens of equal representation. In 2020, the plaintiffs filed an amended complaint to add claims address the truncation of census operations and the Presidential memorandum directing the exclusion of undocumented individuals from the apportionment base.
The amended complaint addressed whether the government would be undercounting minorities by ending field collection of data for the decennial census one month early on September 30, 2020, even though, at that time, an estimated 60 million households (nearly 40%) remained uncounted, most of whom are from “hard to count” communities that include Latinos and Asian Americans, as well as truncating the post data collection processing. Although the issue of truncating field operations became moot because the Trump administration didn’t meet its own deadline for stopping the count, the post data collection processing of field data remains of concern.
The case also addresses excluding undocumented people from the census count which the Supreme Court addressed in another case but did not decide because the government could not establish any facts about how many illegal people were counted, and how they would figure that out anyway.
Finally, the case also addresses whether collection and production of block-level CVAP data is motivated by racial animus towards non-U.S. citizens, Latinos, and Asian Americans by seeking to exclude them from state-level redistricting.
Advancing Justice-AAJC expects the litigation to ensure the accuracy of the ultimate count that will likely be published in April 2021. At that time, it will review the data to determine whether the count is accurate.
The status of the case as of January 31, 2021, is that Plaintiffs may amend their complaint by March 2, 2021 to address ongoing developments as the Census Bureau completes the census count and anticipates makes its report in April 2021.
Prior to the 2020 Primary and General Elections, Plaintiffs sought preliminary injunctive relief against New York State (“NYS”) to ensure an accessible absentee ballot program. As a result of two motions, Defendants agreed to partially modify the State’s absentee ballot program. During this quarter, Plaintiffs monitored the implementation of these changes for the 2020 General Election. We received several complaints from voters that the system was not operating as promised and voters faced numerous barriers to voting. This evidence will be used going forward to address the continued problems with the absentee ballot program.
Prior to this lawsuit, NYS did not operate an absentee ballot system that was accessible to people with print disabilities. Only voters who could manage a paper ballot could vote privately and independently with an absentee ballot. Plaintiffs filed two preliminary injunctions to ensure the 2020 elections were partially accessible, and are now in settlement discussions with Defendants to ensure the 2021 elections and beyond become more accessible. At this time, New York City is the only local board of election that has guaranteed a system will be in place for the 2021 election cycle. Defendants have not confirmed any other county boards of elections have in place an accessible absentee ballot system for their upcoming elections.
Plaintiffs require an accessible absentee ballot to fully access NYS’s absentee voting program in the same way as voters who do not have print disabilities. The overarching issue that remains in this lawsuit is whether Defendants must provide Plaintiffs with a more accessible absentee ballot than the one they offered in the 2020 elections. In particular, does the Americans with Disabilities Act require that Defendants provide a fully accessible absentee ballot system for voters with disabilities, allowing for both electronic ballot marking and ballot return?
Parties are actively seeking a resolution through settlement at this time, however, some issues may require motion practice. In particular, if parties cannot reach an agreement that eliminates the need for electronic ballot return, Plaintiffs may seek court intervention to resolve that issue.
In September and October, 2020, Gender Justice attorneys deposed all non-expert witnesses for our case on behalf of a rural Minnesota woman, Andrea Anderson. Andrea was denied prescription emergency contraception (ella) by multiple pharmacists in her region - forcing her to drive over 100 miles in a blizzard to obtain her medication. Our attorneys deposed each of the pharmacists, pharmacy technicians, and pharmacy owners Andrea interacted with while attempting to fill her prescription. We learned that the Thrifty White pharmacist has previously denied emergency contraception to other women.
Following depositions, we filed for affirmative summary judgment arguing that denial of contraception is per se sex discrimination under the Minnesota Human Rights Act. We have also completed our briefings in response to CVS and Thrifty White’s summary judgment requests. Support from the Foundation has been crucial to our progress on this case and making it financially feasible, especially because we do not have co-counsel from the private bar for this case. Additionally, the Foundation’s support helped us to provide the needed preparation and support of our client and her therapist as they were both deposed by opposing counsel.
The National Center for Youth Law and co-counsel filed Lucas R. v. Azar in November 2018 to deepen and expand procedural protections for the most vulnerable children in federal immigration custody, including: children who are not promptly released to sponsors; children that get stepped up to more restrictive facilities; children who are administered psychotropic medications; children whose lawyers are obstructed from comprehensive representation; and children with disabilities.
During the first quarter of the grant period, the Lucas R. team made significant progress in the case. In October and November 2020, our team filed a motion for summary judgment on three of the five claims and responded to the government’s cross-motion for summary judgment. The extensive fact and expert discovery that our team completed over the past year, including numerous expert reports and depositions, proved critical to our filings. At the summary judgment hearing on December 22, Judge Gee issued a tentative ruling orally. The Court’s tentative ruling was to grant, in part, Plaintiffs’ motion for summary adjudication of the step-up and custodial vetting claim. The Lucas R. team is thrilled that Judge Gee has recognized our class members’ due process rights, and is looking forward to continued settlement discussions with the government.
(February 2021)